Speaking when they are spoken to: hearing vulnerable witnesses in care proceedings Penny Cooper * Keywords: Vulnerable witness – cross-examination – care proceedings – special measures This article considers who is a ‘vulnerable witness’ and how their evidence is heard in family court care proceedings. It compares practices in care proceedings with criminal cases and questions whether parity with the criminal courts should be the goal of the family justice system. The author concludes that there are a number of steps that the family justice system ought to take to ensure fairness to vulnerable witnesses including putting in place a practical scheme for special measures and reframing the legal test for children giving oral testimony in care proceedings. The Family Justice Board is encouraged to consider not so much parity with the criminal justice system, but the bigger issue of how care proceedings could be redesigned to allow greater participation of children and vulnerable adults. INTRODUCTION ‘People are fragile things, you should know by now, Be careful what you put them through People are fragile things, you should know by now You’ll speak when you are spoken to’ From the lyrics to ‘Munich’ by Editors T his article considers the position of vulnerable witnesses in care proceedings 1 in particular how their oral testimony is facilitated in the courtroom. The vulnerability, or fragility, of some witnesses in care proceedings is virtually inevitable. Being a parent who is the respondent to a local authority application or being a child who is the subject of the care proceedings would surely put anyone under significant mental and * The author is a barrister and professor of law at Kingston University London. This article began its life as ‘Dear Chris: the future of children’s testimony and hearing the voice of the child’, presented at the Association of Lawyers for Children Conference, Bristol, 15 November 2012. It is dedicated to the late Joanna Hall, barrister. I am very grateful to the two anonymous reviewers as well as Emily Henderson and Ruth Marchant for their helpful and insightful observations on an earlier draft of this piece. The usual caveat applies. 1 Care proceedings, also known in family law as ‘public law proceedings’, are proceedings brought under Part IV of the Children Act 1989. The applicant is the local authority seeking either a care or supervision order under s 31. Parents with ‘parental responsibility’ and the children who are the subject of proceedings are automatically respondents to the application, ie parties. 132